Democratic Searches and Seizures

The Fourth Amendment protects us from unreasonable searches and seizures. In the subway case upholding random searches of bags, Dan criticizes the court for giving too much deference to the police department.

I disagree.

The subway searches are a good example of what I call democratic searches and seizures. The basic idea is this: if a search or seizure is authorized by a majority of the community—the best evidence being that it occurs pursuant to a validly enacted law—and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable.

Under this standard, the search or seizure is democratic in two senses: a democratic majority approves it and a democratic majority is subject to its effects.

If both of these conditions are met, courts should not invalidate the search as unreasonable under the Fourth Amendment.

The subway case therefore becomes easy. A majority of New Yorkers approve of the searches as a tool against terrorism. The same New Yorkers understand that, as subway riders, they might find their bags being searched. The searches are reasonable.

Another example: A majority of the residents in a public housing community decide that, in order to combat a persistent problem of drug-related crime, in that community, the police will be entitled to conduct unannounced searches of residents’ homes. The residents voting in favor of the policy are themselves subject to the search. The search policy is therefore reasonable.

Justice Breyer supported something like the democratic approach in his concurring opinion in Board of Education v. Earls (2002), in which the Supreme Court upheld a school district policy requiring students, as a condition of participating in extracurricular activities, to submit to drug testing. Breyer emphasized that before adopting the policy, the “school board provided an opportunity for the airing of . . . differences at public meetings designed to give the entire community the opportunity to be able to participate in developing the drug policy.” The example is not perfect: it assumes that the people at school board meetings, if they are not students themselves subject to drug testing, are the parents of students and adequately represent the student’s interests. But it too suggests the value of a democratic approach to searches and seizures.